* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This order and judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R . 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 18 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAMES JOSEPH OWENS-EL, Plaintiff - Appellant,

v. UNITED STATES OF AMERICA, Defendant - Appellee. Nos. 02-1281, 02-1296, 02-1297, 02-1299, 02-1300, 02-1301, 02-1302,

02-1317 D.C. Nos. 02-Z-269, 02-Z-216, 02-Z-391, 02-Z-392, 02-Z-673, 02-Z-394, 02-Z-393, 02-Z-691 (D. Colorado)

ORDER AND JUDGMENT *

Before EBEL , LUCERO and O’BRIEN , Circuit Judges.
Appellant James Joseph Owens-El appeals the dismiss al of eight separate cases filed in the federal district court for the D istrict of Colorado. Two of these cases were dismissed for appellant’s failure to pro vide a clear and concise statement of his claims (Case Nos. 02-1281 & 02-131 7); the remaining six were dismissed because of appellant’s failure to make hi s initial partial payment of four- 2 -

dollars or show cause why he could not pay (Case No s. 02-1296, 02-1297, 02- 1299, 02-1300, 02-1301 & 02-1302). Because we findthat appellant has already accumulated three strikes for filing frivolous acti ons or appeals in the courts of the United States, we DENY his motions to proceed i n forma pauperis in all of his civil appeals. In Case No. 02-1317, to the extent that appellant has asserted habeas claims, we DENY a certificate of appealabili ty under 28 U.S.C. § 2255 and AFFIRM the district court’s dismissal of any 28 U.S.C. § 2241 claims. The filing fees in appellant’s civil appeals have n ot been paid. On July 2, 2002, the United States District Court for the District of Colorado denied appellant’s motion for leave to proceed in forma pauperis on appeal in Case No. 02-1281. On July 17, 2002, it denied appellant’s motion for leave to proceed in forma pauperis on appeal in Case Nos. 02-1296, 02-1297, 02-1299, 02-1300, 02- 1301, and 02-1302. On July 25, 2002, it denied app ellant’s motion for leave to proceed in forma pauperis on appeal in Case No. 02-1317. Under the Prison Litigation Reform Act of 1995 (“PLRA”), prisoners m ust pay the full amount of the filing fee. See 28 U.S.C. § 1915(b)(1). Appellant now moves this court to grant him leave to proceed in forma pauperis

. The “three strikes” provision of the Prisoner Litig ation Reform Act (PLRA), 28 U.S.C. § 1915(g), provides that In no event shall a prisoner bring a civil action o r appeal a judgment in a civil action or proceeding under this section if th e prisoner has, on 3 or- 3 -

more prior occasions, while incarcerated or detaine d in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails t o state a claim upon which relief may be granted, unless the prisoner is underimminent danger of serious physical injury. Under this provision, we find that appellant, who i s a federal prisoner at the Medical Center for Federal Prisoners at Springfield , Missouri, has accumulated three strikes. In 1999, appellant’s § 1983 action was dismissed as frivolous by a federal court in the District of Maryland. Owens v. Maryla nd , D.C. No. 98-CV-3943- JFM (D. Md. Dec. 16, 1998 & Feb. 1, 1999), aff’d , 181 F.3d 90 (4th Cir. 1999). This constitutes his first strike. In March 2001, appellant’s appeal of the district c ourt’s dismissal of his § 1983 action was also dismissed as frivolous. Owe ns v. United States , 6 Fed. Appx. 777, 777-78 (10th Cir. 2001), 2001 U.S. App. LEXIS 5208. This constitutes his second strike. Finally, in August 2001, the Tenth Circuit dismisse d Owens-El’s appeal from the district court’s dismissal of his 28 U.S.C . § 2241 habeas action. OwensEl v. Pugh , 16 Fed. Appx. 878, 879 (10th Cir. 2001), 2001 U.S . App. LEXIS 17287, cert. denied , 122 S. Ct. 1969 (2002). The court held that appe llant “failed to demonstrate the existence of a reasoned, nonfriv olous argument on the law and facts in support of the issues raised on appeal.” Id. Although frivolous habeas- 4 -

petitions normally may not be counted as strikes un der the PLRA, an action that is filed as a habeas petition, but which actually chal lenges conditions of confinement, may be counted. See Jennings v. Natrona County Det. Ctr. Med. Facility , 175 F.3d 775, 779 & n.2 (10th Cir. 1999) (a habea s petition more appropriately construed as a § 1983 action is “countable as a strike”). In OwensEl v. Pugh , the district court dismissed Owens-El’s claims “u nder 28 U.S.C. § 1915(e)(2)(B), concluding that they were factuall y frivolous.” Owens-El v. Pugh , 16 Fed. Appx. at 879. The Tenth Circuit affirmed the frivolity of the claims and held that the action was more properly c onstrued as a civil rights action because it challenged the conditions of conf inement. Id. Thus, the dismissal of this appeal as frivolous constitutes the third strike against Owens-El. Based on appellant’s three strikes under § 1915(g), we DENY his motion to proceed in forma pauperis in Case Nos. 02-1281, 02-1296, 02-1297, 02-1299, 02- 1300, 02-1301, and 02-1302

. Consequently, appellant shall show cause in writing within twenty days of the date of this orde r why 1) the appeal should not be dismissed for failure to prepay the entire filin g fees as required by 28 U.S.C. § 1915(g), or 2) why the provisions of the Prison Lit igation Reform Act do not apply to this proceeding. The three strikes provision of 28 U.S.C. § 1915(g) does not apply to appeals from the dismissal of habeas petitions. Je nnings , 175 F.3d at 779. Case- 5 -

No. 02-1317 was docketed as a § 2241 habeas action; however, the district court concluded that the complaint improperly alleged add itional claims under §§ 2255 and 1983. (Order of June 11, 2002 at 1-3.) It dis missed the case because OwensEl failed to comply with the magistrate judge’s ord er to assert his claims clearly and concisely and provide specific factual support for each claim. (Id. at 3.) Appellant argues on appeal that the district court lied in its order about his failure to provide a clear, concise statement of his case i n his amended pleading. (Aplt. Br. at 3.) This argument is frivolous. To the ext ent Owens-El has alleged any habeas claims under § 2255, we DENY a certificate o f appealability and dismiss those claims. We AFFIRM the district court’s dismi ssal of appellant’s § 2241 claims for failure to state a claim. All other motions filed by appellant, including his motion to appoint counsel and motion for supersedeas bond, are DENIED . Appellant has accumulated three strikes pursuant to § 1915(g) andmay not bring any civil action or appeal in forma pauperis unless he “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

ENTERED FOR THE COURT

David M. Ebel Circuit Judge